You’ve been out with friends celebrating a birthday. It’s been fun. You’re feeling tired. Now it’s a little after 11:00 p.m. and you’re driving home. A bit up ahead you notice what looks like a sobriety checkpoint. Thinking, “ok, impaired driving checkpoint, no problem,” you decide to proceed ahead and enter the line of cars. Getting closer to the actual checkpoint, you notice several officers standing around. There are also a few police cruisers with flashing lights, and one or two drug sniffing canine dogs. As you pull ahead slowly, an officer walks up to your car, tells you to roll down your window. He then shines a flashlight in your face, the backseat, and around your car. The officer asks several questions about where you’ve been and what you were doing that evening. He also asks you whether you’ve had anything to drink. WHAT DO YOU DO?

Those who observe police practices and procedures understand that sobriety checkpoints (also called roadblocks) are the one time that just about anyone comes face-to-face with the panic of police officers asking questions and giving commands. Because they involve numerous drivers, checkpoints generally occur on holidays and high-traffic weekends. They are usually located on popular driving routes, near places that serve alcohol and that stay open late in to the night.

Checkpoints also are more commonly enforced in the summer. The state sees such roadblocks as an effective way to promote public safety; for example, Ohio has its “stay sober or get pulled over” message, which tells the public that police officers intend to get drunk drivers off the road.

WHAT IS A SOBRIETY CHECKPPOINT?

An OVI or sobriety checkpoint allows police to initiate contact with motorists at a specific location, briefly detain them, and look for indicators that the driver is impaired. Generally, the checkpoint will have signs indicating that there is a sobriety checkpoint ahead. It usually has bright orange traffic cones, and police officers themselves, directing traffic into the checkpoint area. In the checkpoint area itself, there is usually a large number of officers who initiate contact with drivers to see if they are impaired.

All checkpoints are subject to strict constitutional requirements. Although other types of police checkpoints have been held unconstitutional, courts have ruled that the importance of deterring and detecting impaired driving outweighs a motorist’s right to be free from the type of limited intrusion that takes place at a sobriety checkpoint.

A sobriety checkpoint must be reasonable before a court will rule that the checkpoint is lawful. Courts require that the intrusion be limited to a brief amount of time. Police are only allowed to inquire whether a driver has been drinking, taking drugs, smoking marijuana, or engaged in some other pursuit that would heighten the risk of impaired driving. At a sobriety checkpoint, police are not allowed to check the motorist’s registration, insurance, or ask to search the driver or car. The officer should only ask to see a driver’s license, and ask the driver if they’ve had anything to drink or smoke. If the officer does not observe any indicators that the driver is impaired, the officer must allow the motorist to proceed on their way. However, if the officer develops “reasonable suspicion” that the driver is impaired, (a reasonable belief, not just a hunch) then the police may legally detain the driver and an actual impaired driver investigation may be conducted.

Courts also require the police agency conducting the sobriety checkpoint to publish the fact that a sobriety checkpoint will be conducted at a certain place during a specific period of time. Most police departments follow very specific rules before and during sobriety checkpoints. If the conditions are not met, evidence collected during the sobriety checkpoint may be thrown out in court. A few such rules are: the checkpoint must be conducted by uniformed officers in police vehicles; drivers must be selected in a predetermined random pattern; the approach to the designated checkpoint area must show notice to drivers that a checkpoint is happening ahead (most often they display signs).

WHAT SHOULD I DO IF THERE’S A SOBRIETY CHECKPOINT WHILE DRIVING?

Many people do not know what they should do if they are faced with a roadside sobriety checkpoint. Let’s look at the birthday celebration scenario above and apply the law to the facts.

THE FIRST thing the driver did wrong was to get in the checkpoint line of cars to begin with. Believe it or not, you do not have to participate in a sobriety checkpoint. If you see a sign that says “Sobriety Checkpoint Ahead” or “DUI Checkpoint Ahead,” you may look for an alternate route. However, if you decide to route around the sobriety checkpoint, do not make sudden movements and do comply with all traffic laws.

A driver should not be arrested for turning around to avoid the checkpoint. If he is arrested, then a skilled lawyer should be able to get the stop ruled unconstitutional and the evidence suppressed.

In Ohio, at least one appellate court has ruled that the stop and arrest was unconstitutional when a driver made a legal turn into a driveway to turn around before entering a sobriety checkpoint area, within sight of the roadblock. The court held that such action did not constitute a reasonable articulable suspicion to justify an investigatory stop that could lead to a lawful arrest. The court reasoned that innocent people may wish to avoid the delay a stop may entail, may fear police authority, or may resent and seek to avoid the “hassle” of a stop that lacks any basis.

THE SECOND thing the driver did wrong was to do everything told by the police officer. Drivers are not required to follow all instructions given by the officer.

You are not required to roll down the window and you can speak to the officer through your window. A good practice is to roll down your window just far enough to pass documents and communicate clearly with the officer.

You should not roll your window all the way down. A police officer may escalate the encounter by placing his head in you open window, and then claiming to smell alcohol, marijuana, or some other illegal substance (even if they didn’t smell anything at all).

If your window is not rolled down very far, the officer will have a hard time convincing the court that the officer really “smelled” marijuana, alcohol or some other illegal substance.

THE THIRD thing the driver did wrong was allow the police officer to engage the driver in conversation. Most people think that they must answer all questions that a police officer asks. That is untrue.

You only have to answer questions related to your identity, such as name, address, date of birth.

The best practice is to tell the police officer that you respectfully choose not to answer questions today. The officer will no doubt get annoyed, but that’s your right to refuse to talk.

The officer may seem friendly and the questions harmless, but the officer is trained to probe into your activities by asking questions such as: “Where are you coming from?” Where are you headed?” What are you up to tonight?” Answering those questions help the officer build a case against you.

THE FOURTH thing the driver did wrong sits hand in hand with the third, but so many people answer this question that it deserves a category of its own. When the officer asks whether you’ve been drinking, respectfully decline to answer the question.

If you have an attorney, inform the officer that your attorney advises not to answer any questions without the attorney being present.

If you admit to drinking (even if it’s only one or two several hours before), then you give the officer what he needs to broaden his investigation.

You have the right to remain silent, and we strongly suggest that you use it.